FIDIC 건설표준계약에서 엔지니어의 이중적인 역할과 책임 - 발주자의 대리인? 조정인? 또는 공정한 결정자? -

Abstract

The engineer works for the employer - he is appointed by the employer, he is the prolonged arm of the employer, whilst at the same time playing the role of a third party mediator and/or adjudicator. What we have is a person who is appointed essentially as an agent, but then circumstance arise which require him to stand back, hold the balance between the parties, try to mediate between them and even arrive at a fair decision. He might have to make a decision which goes against the person who appointed him and which is in direct relation to work he himself has done. The engineer is thus a very powerful person which is also referred to as a decision-maker, a function which requires a certain degree of impartiality and fairness from him. Such a concept as the engineer's dual roles is, however, not familiar to civil law system. A certain civil law jurisdiction invalidates such a weird role of engineer. It is the entity that is discussed in this article. This article comprehensively examines the engineer related clauses under FIDIC construction model forms, including but not limited to the engineer's duties and powers, delegation of its powers to assistants, the engineer's instructions, and replacement of the engineer. This article also analyze the engineer's dual roles under the clause 3.5 of FIDIC in which the engineer is supposed to act as a mediator prior to determining various issues brought by contractor and employer. In addition, this article deals with the engineer's possible liabilities both to the employer and the contractor. The engineer can obviously be contractually liable to the employer based on terms and conditions of their contract adopted. Further, the engineer might be negligently liable to the contractor as the former has a duty of care owed to the latter in the course of its performances. The engineer is liable to the contractor not only for breach of warranty of authority but a fraudulent misrepresentation upon which the contractor has relied and thereby suffered damage, and the engineer is liable to the contractor for any refusal to certify or incorrect certification which is fraudulent and collusive or corrupt. Lastly, in the event the contractor has a possible cause of action in tort against the engineer, this article covers the issues of which court has a jurisdiction and which law should be applicable.